The Supreme Court Robbed J&K of the Chance to Prove its Secularism

In transferring the Kathua trial out of Jammu and Kashmir, the apex court has conceded that communal polarisation has advanced so far in the state that a fair trial is no longer possible there.

Supreme Court of India in New Delhi. Credit: PTI/Atul Yadav

If the Supreme Court’s dismissal of the writ petitions requesting an independent investigation into Judge Loya’s death was a mistake, its decision to move the trial of the eight persons accused of raping and murdering an eight-year-old in Kathua out of the state of Jammu and Kashmir to Pathankot – although well-intentioned – is also a mistake.

The move is well-intentioned, for its goal is to ensure a fair trial. Both, the victim’s father and the relatives of the accused, had asked for the trial venue to be shifted out of the state. But the fact that they had done so for diametrically opposed reasons should have made the apex court dig in its heels and insist that the state’s judiciary be first given the opportunity to rise above these contending pressures and give a fair and impartial judgement.

There were several things the judges could have done to ensure a fair trial. They could have given all the directives that they gave to the district court in Pathankot – that the trial should be held in camera; that it should be fast-tracked to avoid delays in adjudication; that a special public prosecutor should be appointed to conduct the trial and that full security should be provided to the families, witnesses and lawyers involved – to the trial court in Jammu and Kashmir. They could have gone a step further and asked the J&K high court to take up the case directly and thus minimise the possibility of quirky verdicts and subsequent appeals that will delay the final sentencing till it loses its moral force.

They could also have insisted that the bench include high court judges from both the Jammu and Kashmir divisions of the high court. And they could have monitored the trial on a day-to-day basis to ensure its fairness. But they took the easier route of shifting the case out of Jammu and Kashmir altogether. In doing so, they implicitly conceded that communal polarisation has advanced so far in Jammu and Kashmir, that a fair trial is no longer possible within the state.

This assumption is based solely on an unfounded surmise. One glance at the eight-year-old’s face is sufficient to convince any normal viewer that this was an unspeakable and depraved crime, born of sadism and perverted passion, rationalised as a blow struck for Hinduism against Islam only when the police moved with unexpected speed to identify and arrest the suspected culprits.

Sanji Ram – the custodian of the temple where the minor girl had been held, drugged and raped, who is alleged to be the mastermind of the crime – trotted out this cowardly justification because he was confident that it would bring the cohorts of the Rashtriya Swayamsevak Sangh (RSS) and its shadowy offshoots storming out to defend the bastions of Hinduism and paralyse the law and order machinery of the state, while Mr Modi and Amit Shah made tut-tutting noises and looked the other way.

And just look how close Sanji Ram came to success. Two policemen allegedly conspired actively in their attempt to cover up the crime; two BJP ministers addressed crowds demanding the release of Ram and the other accused and a gang of local lawyers stormed the courthouse in an attempt to block their arraignment, just as their peers had stormed the Patiala House court in Delhi three years ago, to beat up Kanhaiya Kumar and the Jawaharlal Nehru University professors who had come to the court to give him moral support.

Ram failed because the crime had not been committed in Unnao or Una or Bishara or Jaipur, or any other state which is inflicted with a BJP government. It was committed in Jammu and Kashmir, which is a Muslim-majority state with a Muslim-majority party in power, a Muslim chief minister and a Muslim majority in the police.

New Delhi: People display placards as they take part in ‘Not In My Name’ protest against the
recent incidents of rapes, at Parliament Street in New Delhi. Credit: PTI Photo by Ravi Choudhary

“Oh, but isn’t that exactly why the lawyers of the accused asked for the trial to be shifted out of the state?” Yes, that was their ploy, and it succeeded because none of the learned judges had any first-hand experience of the unique, syncretic, religious tradition of Kashmir Valley that has survived three decades of unrelenting, despotic, military rule, the ethnic cleansing of Kashmiri Pandits in the 1990s and the rise of militant Islam among the youth in recent years in the Valley.

This tradition, which is hard-wired into the genes of the Kashmiri Muslims, asserted itself when militants of the Lashkar-e-Taiba shot dead Lieutenant Umer Fayaz in cold blood in Shopian last year. The killing was not only condemned by the Kashmiris, but the local people even helped the army to identify the killers.

It surfaced once again a few days ago in the unanimous condemnation of the killing by stone pelters of a tourist from Chennai. It has surfaced a third time in the demand for a ceasefire during Ramzan and the Amarnath yatra.

What is far more telling is the absence of attacks on yatra pilgrims, despite five to six lakhs of them flooding the Valley every year. Sceptics may say that this is only because the pilgrims bring money to Kashmir, but the way in which Kashmiris have gone out of their way, year after year, to help pilgrims in trouble – whether as a result of a freak storm in the mountains, a bus falling into a ravine, or a sudden lockdown of the Valley such as the one that followed the death of Burhan Wani – belies this cosy dismissal. In fact, the sanctity of the Amarnath yatra empahasises the umbilical connection that Kashmir has with the rest of India.

At Kathua, the suspected culprits were caught so swiftly not because the key members of the government and the police were Muslim, but because they were Kashmiris. The Gujjar-Bakarwals are mostly Sunnis, but not of the Sufi-Hanafi-Reshi variants found in the Valley. They do not even speak Kashmiri. So to claim that the People’s Democratic Party and the Kashmir police acted swiftly only because they were ‘Muslims’ is from the reality.

By the same token, it would be a grotesque caricature of the truth to believe that all the Hindus in Jammu have been communalised by the incessant propaganda of the RSS. One has only to experience the stiff opposition to any suggestion that Jammu and Kashmir should be separated, to grasp that an overwhelming majority of Jammu prefers to remain a part of J&K state.

The unassailable truth is that Jammu and Kashmir is probably the only truly pluralist state in the country where the administration has not been poisoned by the hate-filled propaganda of the RSS. It should, therefore, have been given the chance to prove the secular credentials through the fairness of its judicial process. The Supreme Court did not really have the right to deny that opportunity to the state.

recent incidents of rapes, at Parliament Street in New Delhi. Credit: PTI Photo by Ravi Choudhary

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Hi, my name is Prem Shankar Jha. I am a journalist and author based in New Delhi, India.
In the last decade I have become more and more concerned about where the world is heading and I am curious to explore interactive formats with you in order to share views and concerns.
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